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Deep South Crane & Rigging United States of America OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION 1120 20th Street, N.W., Ninth Floor Washington, DC 20036-3457 SECRETARY OF LABOR, Complainant, v. OSHRC Docket No. 09-0240 DEEP SOUTH CRANE & RIGGING CO., Respondent. ON BRIEFS: Gary K. Stearman, Attorney; Heather R. Phillips, Counsel for Appellate Litigation; Joseph M. Woodward, Associate Solicitor of Labor for Occupational Safety and Health; M. Patricia Smith, Solicitor of Labor; U.S. Department of Labor, Washington, DC For the Complainant David C. Goff, Esq.; Deutsch, Kerrigan & Stiles, L.L.P., Gulfport, MS For the Respondent DECISION Before: ROGERS, Chairman; ATTWOOD, Commissioner. BY THE COMMISSION: On July 18, 2008, four employees of Deep South Crane & Rigging Company (“Deep South”) were fatally injured when a Deep South-owned VersaCrane TC-36000 (“Versa 36000”), fell over backwards at the Lyondell-Bassell Refinery in Houston, Texas. After conducting an inspection of the worksite, the Occupational Safety and Health Administration (“OSHA”) issued Deep South three citations alleging eleven violations of the Occupational Safety and Health Act of 1970 (“OSH Act”), 29 U.S.C. §§ 651-678. Five of the eleven citation items were settled prior to the hearing presided over by Administrative Law Judge Patrick Augustine, who affirmed four of the remaining six citation items and vacated the rest. Two of the affirmed citation items are at issue on review. In Serious Citation 1, Item 1, Instance 3, the Secretary alleges that Deep South violated section 5(a)(1) of the OSH Act, 29 U.S.C. § 654(a)(1), also known as the general duty clause, because the company failed to ensure that its site supervisor ensured the crane operator was qualified to operate the crane. In Repeat Citation 2, Item 1, the Secretary alleges that Deep South violated 29 C.F.R. § 1926.20(b)(4) because it allowed an unqualified crane operator to operate the crane. For the reasons that follow, we affirm both items as alleged and assess a total penalty of $40,000. BACKGROUND The Versa 36000 is one of the largest cranes in the world. As configured here, it had a lifting capacity of 2,500 tons, a 420-foot long boom on the front-end, and a mast in the back. On July 18, 2008, Deep South was in the final stages of assembling its Versa 36000 at the Lyondell- Bassell Refinery when the crane operator placed the crane into a “backwards overhaul” position, a maneuver that rendered the crane unstable by raising the boom too high and placing too much weight on the backside mast. The crane was still in an overhaul position three hours later when it fell over backwards, killing the operator and three other Deep South employees. The site supervisor responsible for overseeing the crane operator’s work was standing behind the crane at the time of the collapse, unaware the crane had been in a backwards overhaul position. DISCUSSION I. Serious Citation 1, Item 1, Instance 3 In this instance, the Secretary alleges that Deep South violated the general duty clause by exposing its employees to the hazard of being struck by the boom of a crane or a dropped load due to the company’s failure to ensure that its site supervisor ensured that the crane operator was qualified to operate the Versa 36000. See Otis Elevator Co., 21 BNA OSHC 2204, 2206, 2004- 2009 CCH OSHD ¶ 32,920, p. 52,545 (No. 03-1344, 2007) (establishing general duty clause violation requires Secretary to show (1) a condition or activity in the workplace presented a hazard to employees, (2) the employer or its industry recognized the hazard, (3) the hazard was likely to cause death or serious physical harm, and (4) a feasible and effective means existed to eliminate or materially reduce the hazard and, in addition, that the employer knew or, with exercise of reasonable diligence, could have known of violative condition).1 1 On review, Deep South does not dispute the seriousness of the alleged hazard, its recognition of that hazard, or the feasibility of abatement. 2 In affirming this instance, the judge found that the site supervisor “was simply told to ‘familiarize’” the operator with the Versa 36000, which he determined was insufficient to ensure the site supervisor verified the operator’s qualifications. On review, Deep South claims that its site manager took steps to address the alleged hazard by adequately instructing the site supervisor to verify the crane operator’s qualifications to operate the Versa 36000. Deep South also claims that the Secretary did not meet her burden of showing that the cited conduct was foreseeable and, therefore, failed to establish that it had knowledge of the violative condition. For the following reasons, we reject both arguments. Deep South’s Instructions In assessing the adequacy of instructions an employer provides to its employees, the Commission considers evidence of whether they pertain to the particular jobsite hazards and applicable regulations, and are sufficiently specific. See Archer-Western Contractors, Ltd., 15 BNA OSHC 1013, 1020, 1991-1993 CCH OSHD ¶ 29,315, p. 39,381 (No. 87-1067, 1991) (noting that duty to instruct employees on hazard recognition and avoidance is “satisfied when the employer instructs its employees about the hazards they may encounter on the job and about the regulations applicable to those hazards”), aff’d, 978 F.2d 744 (D.C. Cir. 1992) (unpublished); see also Danis Shook Joint Venture XXV, 19 BNA OSHC 1497, 1500, 2001 CCH OSHD ¶ 32,397, p. 49,864 (No. 98-1192, 2001) (finding that employer failed to provide sufficiently specific instructions based on three brief conversations that occurred by happenstance and failed to make “some effort to assure that employees understood the meager information it did provide”), aff’d, 319 F.3d 805 (6th Cir. 2003). The Secretary alleges numerous shortcomings in the instructions Deep South gave to ensure that the crane operator was qualified to operate the Versa 36000. According to the Secretary, Deep South failed to instruct site supervisor Aydell to ensure that the crane operator could read the load charts, use the correct boom angle to radius chart, and operate and understand the controls. She also contends that Deep South did not instruct Aydell to verify the crane operator had taken and passed written tests for the Versa 36000, and satisfactorily completed a hands-on operational test to determine proficiency. These allegations track the specific requirements for operators and operators-in-training found in section 5-3.1.2 of the American Society of Mechanical Engineering’s Safety Standard for Cableways, Cranes, Derricks, Hoists, Hooks, Jacks, and Slings (“ASME B30.5”). The ASME B30.5 requirements include: (1) 3 successfully passing a physical examination; (2) satisfactory completion of a written exam covering operational characteristics for the crane type; (3) demonstrated ability to read, write, comprehend, and use arithmetic and load/capacity charts; (4) satisfactory completion of a written and oral test on load/capacity chart usage of various configurations for the crane type; and (5) satisfactory completion of an operation test demonstrating proficiency in handling the specific crane type. The evidence in the record supports the Secretary’s allegations. Specifically, the record shows that Craig Stanford, Deep South’s site manager, was familiar with ASME B30.5, and recognized it as the crane standard applicable to the Versa 36000. But at the hearing, Stanford could not remember precisely what he told Aydell, other than instructing him to “familiarize” the crane operator with the Versa 36000.2 Stanford, therefore, never addressed the specific requirements listed in ASME B30.5.3 And despite testifying that he knew the operator “never had any practical examination or tests over his skills on the 36000,” Stanford did not instruct Aydell to ensure that the crane operator had passed the written test, which was required under ASME B30.5 before the operator could enter the crane’s cab even as an operator-in-training. Nor did Stanford instruct Aydell to provide the crane operator with instructions regarding the Versa 36000’s load chart usage or ensure his satisfactory completion of a hands-on operational test demonstrating the operator’s proficiency in operating the Versa 36000. In fact, Aydell admitted that he did not even know the minimum requirements to operate the Versa 36000, and there is no evidence that his own experience operating the Versa 36000 provided him with knowledge of the specific steps he should take to ensure the operator was qualified. Deep South argues that Aydell’s oversight of the crane operator was adequate which, it claims, shows that Stanford properly instructed Aydell. See Archer-Western Contractors, Ltd., 15 BNA OSHC at 1020, 1991-1993 CCH OSHD at p. 39,380 (examining employees’ 2 Stanford testified that he also intended for a lead operator to be inside the cab with the crane operator when he raised and lowered the boom and moved the crane. However, he did not claim to have given such instructions to Aydell. 3 We note that Deep South owner Mitchell Landry testified that the company has a training program that includes classroom instruction and operational training on the specific equipment the employee is being trained to operate. Not only it is unclear whether this program met the requirements of ASME B30.5 for crane operators, but there is also no indication that Stanford ever instructed Aydell to ensure the operator completed the program. 4 performance as evidence of training). Even if we were to accept the principle that Aydell’s actions could establish the adequacy of Deep South’s training, we find his oversight deficient. See N & N Contractors, Inc., 18 BNA OSHC 2121, 2127, 2000 CCH OSHD ¶ 32,101, p.
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